KML-KRAMER

Policies

General terms and conditions of sales and deliveries of the KML-Kramer Ltd. for use in any business dealings with entrepreneurs

I. General provisions

1. For our deliveries and services (in the following: deliveries), the following terms and conditions shall exclusively apply. Any conflicting terms and conditions of the buyer apply only if we have expressly agreed to their validity.

The conditions already communicated to the buyer prior to conclusion of the contract are expressly made part of the contract. The buyer confirmes to have taken note of these conditions and recognizes them as part of the contract.

2. We fully reserve our ownership- and copyright exploitation rights regarding cost estimates, drawings and other documents (in the following: documents). The documents may be made available to third parties only with our prior consent. If the order is not placed with us, they must be returned to us immediately upon request.

3. Partial deliveries are permissible insofar as they are reasonable for the customer

2. If mounting and assembly by us are subject to contract and nothing else has been agreed upon, the buyer also bears the necessary ancillary costs such as travel expenses, costs for the transport of equipment and personal luggage as well as allowances, in addition to the packaging.

3. Toward us, the buyer can only offset such claims that are undisputed or legally determined.

III. Retention of title

1. The items of supplies (goods subject to the retention of title) remain our property until fulfilment of all claims resulting from the terms and conditions by the buyer. As far as the value of all security interests that we are entitled to exceeds the amount of all secured claims by more than 20%, we will release a corresponding part of the security interests at the request of the buyer.

2. During the existence of our retention of title, forfeiting or chattel mortgage is prohibited to the buyer and resale is possible only for resellers within the ordinary course of business and on the condition that the reseller receives payment from their customer or expresses the reservation that ownership is transferred to the customer only when they have complied with their payment obligations.

3. In case of garnishments, seizures or other dispositions or interventions by third parties, the buyer must notify us immediately.

4. In case of breach of the duty on the buyer’s part, in particular in case of delay of payment, we shall be entitled, after the unsuccessful passing of a reasonable deadline for the buyer to meet our demands, to the resignation or withdrawal of our products, services or deliveries; the statutory regulations concerning the dispensability of the appointment of a date remain unaffected. The buyer is obliged to surrender.

IV. Time for supplies; Delay

1. The observance of deadlines for deliveries presupposes the timely receipt of all documents, necessary permits and approvals, especially concerning plans, to be supplied by the buyer; as well as the compliance with the agreed payment terms and other obligations by the buyer. If these conditions are not fulfilled on time, the deadlines shall be extended appropriately; this does not apply if we are responsible for the delay.

2. If the failure to comply with time limits is due to force majeure, e.g. mobilization, war, riot or similar events, e.g. strike, lock-out, the deadlines shall be extended appropriately.

3. Both claims for damages of the buyer due to delay of delivery, and claims for damages instead of performance, beyond those specified in item No. 3, are excluded in all cases of delayed delivery, also after any deadline set us for delivery. This does not apply to compulsory liability in case of intent, gross negligence or injury of life, body or health. In the context of legal provisions, the buyer may withdraw from the contract only as far as the responsibilty for any delay of delivery lies with us.

4. The buyer is obliged to declare upon our request within a reasonable period of time whether he resigns from the contract due to the delay in delivery or insists on the delivery.

5 If shipment or delivery are delayed on the buyer’s request by more than one month after notification of readiness for shipping, we may charge monthly storage time incurred in the amount of 5% of the price of the items of the supplies, but not more than an aggregate of 5%, to the buyer. The contracting parties retain the verification of higher or lower storage costs.

V. Passing of risk

1. The risk shall pass to the buyer even in the case of freight-free delivey as follows:

(a) in the case of delivery without installation or assembly, if the goods have been brought to or picked up from shipping. At the request and expense of the buyer, deliveries are insured by us against the usual transport risks;

(b) if the supplies include installation or assembly, on the day of taking them over at the buyer’s firm or, if so agreed, after a fault-free trial run.

2. If the dispatch, the delivery, the start, the carrying out of the installation or assembly, the acceptance into operation or the trial operation are delayed for reasons in the buyer’s responsibility, or if the buyer is in default of acceptance for other reasons, the risk shall pass to the buyer.

VI. Receipt

The customer may not refuse to accept supplies due to minor defects.

VII. Defects as to quality

Für Sachmängel haften wir wie folgt:

1. All parts or services that show a material defect within the limitation period - regardless of the duration of the operation - are to be repaired, delivered or provided by us free of charge at our discretion, as long as its cause already existed at the time of transfer of risk.

2. Claims based on defects become time-barred within 12 months. This shall not apply where the law according to §§ 438 par. 1 No. 2 (buildings and items for buildings), 479 par. 1 (recourse) and 634a para 1 No. 2 (building defects) BGB prescribes longer periods as well as in cases of injury to life, body or health, for an intentional or grossly negligent breach of duty by us and fraudulent concealment of a defect.

3. The buyer has to rebuke any defects to us immediately in writing.

4. Payments can be held back by the customer only if a complaint is made about the legitimacy of which there is no doubt. If the notice of defects is given wrongly, we are entitled to reimbursement of our expenses from the buyer.

5. First, we are to be granted the opportunity for subsequent performance within a reasonable period of time.

6. If the supplementary performance fails, the buyer - without prejudice to any claims for damages in accordance with article XI - may reduce payment.

7. Claims for defects do not exist for only minor deviations from the agreed quality, or for only minor impairment of usability, natural wear and tear or damage after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating materials or poor construction; or for those that arise due to particular external influences which are not provided in the contract. If improper modifications or repair work is carried out by the buyer or by a third party, no claims may be made regarding these and the resulting consequences.

8. Claims of the buyer concerning the expenses required for the purpose of subsequent performance, in particular transport, travel, work and material costs are excluded as far as the expenses are increased because the subject matter of the delivery is subsequently transported to a location other than the establishment of the buyer, unless it complies with its intended use.

9. Recourse claims against us according to § 478 (recourse of the entrepreneur) exist only in so far as the buyer has concluded no agreements beyond the statutory claims for defects with its customers. Also, No. 8 is applicable to the scope of the recourse claim of the buyer against us according to section 478 paragraph 2 BGB.

10. Article IX (other claims for damages) applies to claims for damages, in addition. Further claims of the buyer against us or our vicarious agents due to a material defect or other than in article VIII are excluded.

VIII. Impossibility of performance; Adaptation of contract

1. To the extent that delivery is impossible, the buyer is entitled to require damages, unless we are not responsible for the impossibility. The buyer’s claim for damages is limited to 10% of the value of that part of the delivery that can not be taken into appropriate operation due to the impossibility. This limitation does not apply in cases of compulsory liability due to intent, gross negligence or due to injury of life, body or health.

2. Where unforeseeable events within the meaning of article IV No. 2 substantially change the economic importance or the contents of the supplies or considerably affect our operations, the contract will be adapted accordingly under consideration of good faith. As far as this is not economically feasible, we reserve the right to withdraw. If we make use of this right of withdrawal, we will inform the buyer after realizing the scope of the event, even if an extension of the delivery time was agreed with the customer initially.

IX. Other claims for damages

1. Claims for damages and reimbursement of the buyer (in the following: damage claims), regardless of whatever legal reason, including infringement of duties arising from contractual obligations and tort, are excluded.

2. This does not apply whenever liability is mandatory, e.g. according to the product liability act, in cases of intent, gross negligence, due to injury of life, body or health, or in cases of violation of essential contractual duties. However, the claim for damages for the breach of essential contractual obligations is limited to contract-typical, foreseeable damage, insofar as there is no wilful misconduct or gross negligence or if liability is due to injury of life, body or health.

3. As far as the buyer is entitled to claims for damages pursuant to this article, those shall be timebarred upon expiration of the applicable for claims of limitation in accordance with article VII No. 2. The statutory Statute shall apply for claims for damages. For claims for damages under the product liability Act, the statutory Statute shall apply.

4. If the customer resigns from a placed order without justification, we can request - without prejudice to the possibility to assert a higher actual damage - 15% of the sale price for the costs incurred in the processing of the order and the profit lost. Any materials we have purchased already and which cannot be used otherwise are also to be paid for by the buyer. Proof of lower damage remains reserved to the buyer.

If the buyer has received a discount based on the ordered quantities and if the quantities are then reduced at his request, the discount granted him is also reduced according to our scale of discount. Discount will therefore only be granted on the quantities actually delivered.

X. Place of jurisdiction

Osnabrück is the sole place of jurisdiction for all disputes arising from the contractual relationship, directly or indirectly, if the buyer is a merchant. We are however entitled to also make claims at the buyer’s headquarters.

XI. Liability of contract

Should individual provisions of these terms and conditions be wholly or partially invalid, the validity of the remaining provisions remains unaffected.